WWRC 97-05qq
Wyoming Water Development Commission's Role Under the Wyoming Instream Flow Law

Background
Just what is the Wyoming Instream Flow Process and
where did it come from?

As early as 1899 laws have been enacted to protect
flows in natural channels. The Rivers and Harbors
act of 1899 was enacted to protect the navigable
capacity of the nations waterways. This flow
protection by the U.S. Army Corps of Engineers was
expanded in the 1960s to include protection of water
resources. The Corps regulatory authority was again
expanded in 1972 with Section 404 of the Clean
Water Act.

An early attempt at an instream flow water right in
Wyoming was in 1969. An application was filed by
the Wyoming Outdoor Coordinating Council for an
in place flow right on the Green River Habitat. Due
to several problems with a minimum instream flow
right, including the lack of consumptive use of the
water, the permit was rejected.

In 1972 the focus on preserving our nation and
Wyoming's waters moved from the federal level to
the state level in Wyoming. In April of 1972, the
League of Woman Voters under the coordination of
the Wyoming Recreation Commission held a Wild,
Scenic and Recreational Rivers Seminar in Casper.
They resolved that it was time that the legislature
pass some sort of protection for free flowing rivers
and streams in Wyoming.

The next year the House introduced a Stream
Preservation Feasibility Study with a funding
package of $25,000. This passed the House 39 to 20.
The Senate reduced the amount to $7,500 and passed
it 21 to 9. The House then passed the amended bill
by 53 to 8. From this legislation, the Stream
Preservation Feasibility Study Committee was
formed. The Stream Preservation Feasibility Study
Committee presented a final report to the Legislature
in 1974 proposing two bills, a Protection of Stream
Channels bill and a River Protection System bill.
The Protection of Stream Channels bill basically
required a review and permitting process before any
stream channel alterations would be allowed in
Wyoming. The Wyoming River Protection System
bill provided for the management of primitive, scenic
and recreational rivers by creating a Wyoming River
Protection Council and four (water division) River
Protection Advisory Committees.

These two bills were introduced in both the Senate
anH Hniiiic in 107S The Senate hills were both sent
to Senate Committee No. 5. The Committee
recommended "do not pass" and the bills both died
on general file. The House bills were sent to House
Committee No. 5 and died in committee.

In 1976 similar forms of both bills were introduced in
the House. The Protection of Stream Channels bill
came out of Committee No. 5 with a "do not pass"
recommendation and died on general file. The
Wyoming River Protection System bill died in
Committee No. 5.

The Protection of Stream Channels bill was
introduced in the Senate in 1979. After getting an
"amend and do pass" recommendation out of
Committee No. 6, the Senate approved it 17 to 13
House Committee No. 5 then recommended do not
pass. The bill then died on general file. 1979 was
also the year that the legislature formed the Water
Development Commission.

The Protection of Stream Channels bill was a state
bill that provided similar regulations as the federal
404 permitting process that was already in exisistence
This may have had some effect on the disappearance
of the bill in 1980. The Wyoming River Protection
System bill, however, did not have similar federal
regulatory provisions and reappeared in a revised
form in 1981.

In 1981, similar forms of an Instream Flow bill were
introduced in both the Senate and the House. The
Senate adopted its bill 24 to 6 and sent it to the
House. House Committee No. 5 then recommended
"do not pass." The bill died on general file. The
House bill was sent to House Committee No. 5 and
died in committee.

For the next four years, Instream Flow bills were
presented and amended in several forms in both the
Senate and House. In 1982, one Senate bill and two
House bills died in committee. In 1983, a Senate bill
died on general file and three House bills died in
committee. In 1984, one Senate bill and two House
bills all fail to be introduced. Around this same time,
1983 to 1984, a petition sponsored by several
conservation groups was circulated with the intent to
place an instream flow bill on the 1986 general
election ballot. In 1985, a Senate bill died in
committee and a House bill failed in conference
committee.

Finally in 1986, House bill No. 209, after seven
amendments, made it all the way through both the
Senate and the House and became Chapter 76 of the
1986 Session Laws of Wyoming. The House passed
the first version of the bill by 48 to 16 on first
reading and after several amendments and two more
readings, it passed by a vote of 58 to 6. After
additional amendments, committee reviews and three
readings in the Senate it passed by 19 to 11. The
final vote taken in the House passed the final form of
the bill by a vote of 40 to 24. Chapter 76 of the 1986
Session Laws of Wyoming created Wyoming Statutes
41-3-1001 through 41-3-1014.

These statutes are the same as the ones used today
with two changes. In 1987, Chapter 50 of the statutes
transferred the authority given to the division of
water development within the Economic
Development and Stabilization Board to the Water
Development Commission. It also placed the
responsibility for fees and costs of the permitting and
adjudication process of the instream flow water rights
with the Game and Fish Commission.

One additional statute. Chapter 177, that was created
in 1975, also pertains to instream flows. This statute
states that "In the administration of water rights on
any stream and in the consideration of any
applications for permits, the State Engineer may
require that water be provided to meet reasonable
demands for instream stock use."